by Traverse Legal, reviewed by Enrico Schaefer - February 25, 2026 - GDPR Data Privacy
CIPA pen register claims now drive a new wave of website tracking lawsuits. A recent federal ruling in Camplisson v Adidas gave plaintiffs more room to pursue claims tied to pixels and similar tracking tools. Site owners who rely on analytics or ad pixels should treat this shift as a compliance trigger, not background noise.
Read Recycling Meta Pixel Plaintiffs: The Rise of Professional Testers and the New Wave of CIPA Shakedowns for context on why these tracking cases keep multiplying.
Quick take
Camplisson matters because the court let key claims survive early dismissal arguments. That single move changes leverage. Plaintiffs gain momentum. Defendants face higher defense costs earlier. Demand letters become easier to write and harder to ignore.
The ruling also signals a broader trend. Plaintiffs keep repackaging pixel tracking into older surveillance statutes. Courts do not agree on every element, but a case survives when the complaint pleads a plausible technical story and points to weak consent.
For a business owner, the takeaway stays practical. Even if you plan to fight, you still need to tighten the system. Courts focus on two issues in these cases:
If your pixels fire on page load and your consent banner functions like a passive notice, you should expect more risk than a site that blocks tracking until a user clicks an accept button.
CIPA includes a set of rules California uses to regulate interception and tracking. Section 638.51 targets the use of a pen register or a trap and trace device without required consent.
In plain English, plaintiffs use this section to argue a website should not capture and transmit certain routing and signaling style data from a visitor without permission. They try to fit modern web tracking into concepts built for telecommunications.
Two definitions drive most disputes.
A pen register generally captures numbers or similar routing information tied to outgoing communications. A trap and trace device generally captures comparable routing information tied to incoming communications. These tools focus on signaling information, not message content.
Plaintiffs argue that tracking pixels function like those tools when they record identifiers and send them to third parties. Defendants argue pixels measure traffic and events, not dialing style information, and the statute does not map cleanly onto modern web architecture. Courts split, which fuels filings.
For a newbie, the key point stays simple. A CIPA pen register claim does not require an allegation of someone reading your messages. The claim can focus on what your site collected and transmitted during a visit and whether the visitor consented before collection began.
CIPA pen register claims target a narrow idea. Plaintiffs argue a tracking pixel acts like a pen register or trap and trace device when it records and transmits dialing, routing, addressing, or signaling information tied to a visitor’s electronic communications.
In these cases, plaintiffs usually plead two points.
First, the site installed a tracking tool on the visitor’s browser without valid consent.
Second, the tool captured identifiers and sent them to a third party, such as an ad platform or analytics vendor.
Plaintiffs also lean on device fingerprinting. Fingerprinting links separate data points, such as browser attributes, unique identifiers, and other signals, to recognize a device across visits. Plaintiffs argue that the process creates a tracking record that fits within CIPA’s broad definition of a device or process used to record signaling information.
Courts split because the statute came from a telephone surveillance era, while pixels operate in a web ecosystem.
Some courts read CIPA’s definition broadly and allow plaintiffs to proceed when they allege pixels recorded identifiers and addressing information, including information embedded in an IP address. Under this view, the case can move forward at the motion to dismiss stage if the complaint plausibly alleges the tracking tool recorded and transmitted this category of information.
Other courts read the definition more narrowly. They treat many pixel outputs as substantive event data, not routing or addressing signals. Under this view, the pixel does not fit the statutory concept of a pen register, especially when the alleged data looks like behavioral analytics rather than communication signaling.
For site owners, the practical risk remains simple. The same tracking setup can produce different results depending on the court and the facts pleaded, especially around what data the tool captured and whether the user gave consent before the tool fired.
Camplisson turned on what plaintiffs alleged Adidas deployed and what the court accepted as plausible at the pleading stage.
Plaintiffs alleged Adidas used two tracking pixels on its website: TikTok Pixel and Microsoft Bing. Plaintiffs alleged Adidas installed the trackers on visitors’ browsers without their consent.
Plaintiffs alleged the trackers collected IP addresses, browser information, unique identifiers, and other personally identifiable information and addressing information. Plaintiffs also alleged the trackers used device fingerprinting, meaning the tools associated information collected through the trackers with other personally identifiable information to facilitate device-level activity tracking.
Adidas argued the trackers did not qualify as a pen register under the statute for two main reasons.
First, Adidas argued the trackers captured only specific outgoing information rather than all outgoing communications from a device.
Second, Adidas argued the fingerprinting-related information was substantive, not dialing, routing, addressing, or signaling information.
The court rejected both arguments at the pleading stage. The court treated CIPA’s definition as intentionally broad and declined to require allegations that a tool captured all outgoing communications. The court also held the alleged recording of personally identifiable information, including information contained in an IP address, plausibly alleged use of a pen register for purposes of surviving dismissal at this early phase.
Adidas also argued consent barred the claims. The court disagreed based on how Adidas presented its online terms and privacy disclosures. The court focused on two alleged defects. Visitors had to scroll to a footer to find the terms and privacy policy, and the site did not use a pop up or similar mechanism that required an affirmative action to show assent.
A privacy policy can support consent, but courts scrutinize how a site presents it. A buried link and continued browsing language create risk, especially when tracking pixels fire on page load. For a practical baseline, compare your disclosures to Privacy Policy: Consideration for Every Website Owner and confirm your public policy page matches your real tracking setup.
Footer links create two practical problems.
First, many users never see them. A business cannot rely on consent a user never encounters.
Second, footer links usually function like browsewrap. Browsewrap rests on the idea that continued use equals agreement. Courts apply uneven standards to browsewrap, and plaintiffs attack it as nonconsensual tracking.
CIPA pen register claims amplify this problem because plaintiffs frame the harm as immediate. The pixel fires, data transmits, and the user never took an affirmative step.
Clickwrap consent forces an affirmative action. The user clicks accept or agrees before the site activates nonessential tracking. That structure gives a business a clearer argument on notice and assent.
Clickwrap also creates better records. A consent system can log the event, timestamp, and preference selection. Those records matter when a demand letter hits and you need to prove your flow.
A business should still match the consent language to the real tracking behavior. Consent text should name categories of tracking and third party recipients in plain terms.
Test the system like a reviewer and like a plaintiff.
Defendants cite these cases because several courts dismissed similar CIPA section 638.51 theories tied to website tracking. These decisions give defense teams language to argue two core points.
First, defendants argue pixels do not fit the statutory concept of a pen register or trap and trace device. These courts treated the statute as a narrow tool aimed at telephone style signaling and routing information, not modern web analytics events.
Second, defendants argue consent defeats the claim when the site discloses tracking in terms and privacy materials. Some decisions accepted online disclosures as sufficient at an early stage, depending on how the site presented notice and assent.
These rulings do not eliminate risk. They show a path to dismissal in some courts with some fact patterns.
Camplisson did not adopt the defense framing at the pleading stage. The court treated the statutory definition as broad enough to cover the alleged tracking conduct and allowed the case to proceed based on the complaint’s factual allegations.
The court also rejected the consent argument as presented. The complaint framed Adidas disclosures as passive and hard to find. The court focused on the absence of a mechanism requiring affirmative assent, such as a pop-up or similar consent action.
A split in case law creates two business realities.
First, plaintiffs file more cases. Uncertainty lowers their barrier to entry.
Second, your consent design and tracking governance matter more than your legal argument. A strong clickwrap consent flow and a true pre-consent block reduce exposure across jurisdictions. A footer link strategy increases exposure even in courts that sometimes dismiss.
Treat tracking governance like a control system. Inventory tools, control firing rules, document consent, and keep records ready for review.
Treat CIPA pen register claims as a tracking governance problem. A clean program reduces exposure and shortens response time when a demand letter lands. If you need a legal plus technical review of your pixel stack, see Data Privacy Lawyer for the audit approach counsel uses in tracking disputes.
Build a tracking map you can hand to counsel in one page.
If your business relies on consent, enforce it technically.
Mismatch drives problems. Plaintiffs look for gaps.
Contract controls reduce business exposure, even when they do not eliminate legal exposure.
A demand letter cycle moves on documentation.
A CIPA demand letter aims to force a quick settlement. Your first move should protect evidence and protect your narrative. Start with How to Defend Against Meta Pixel Threat Letters because the preservation and response discipline transfers directly to CIPA pen register claims.
Preserve records before anyone starts making changes.
Early responses become exhibits later. If the letter frames the issue as wiretapping, review A Guide to Wiretap Allegations Linked to Meta Pixel before you send a substantive reply.
Avoid statements like:
Keep communications short. Confirm receipt. State you are reviewing. Ask for time if needed.
Remediation and defense can run in parallel. The decision depends on what your audit shows.
Remediate when:
Litigation posture becomes more realistic when:
Counsel usually runs the response like an incident review.
If you want to reduce exposure from CIPA pen register claims without shutting down your marketing stack, start with a tracking inventory and a consent firing audit. Capture what loads, when it loads, and where data goes. Then lock a consent flow that blocks non-essential tools until a user takes an affirmative step. If you already received a demand letter, get counsel involved before you respond on the merits, since one sloppy email can create a new problem you cannot undo.
A CIPA pen register claim alleges a business used a pen register or trap and trace device without required consent. Plaintiffs argue that certain website tracking tools record and transmit routing or signaling style information tied to a user’s communications.
TikTok Pixel can create CIPA exposure allegations when it fires before valid consent and transmits identifiers or similar data to TikTok. Risk depends on your consent flow, your configuration, and what data your site sends.
Some plaintiffs argue IP addresses or information contained in an IP address qualify as addressing information. Courts do not treat this issue uniformly. Treat IP address transmission to third parties as a risk factor, especially when it occurs before affirmative consent.
A cookie banner can support consent if it provides clear notice and requires an affirmative action before non-essential tools fire. A banner that allows tracking to start on page load creates more risk.
A privacy policy alone can fail when users do not see it or never take an affirmative step to agree. Courts scrutinize passive notice models, especially for claims tied to immediate tracking.
Yes. Many businesses reduce risk by limiting tools to essential functions until affirmative consent, reducing data shared with third parties, tightening configurations, and documenting consent logs. This approach preserves measurement while improving compliance posture.
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As a founding partner of Traverse Legal, PLC, he has more than thirty years of experience as an attorney for both established companies and emerging start-ups. His extensive experience includes navigating technology law matters and complex litigation throughout the United States.
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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Enrico Schaefer, who has more than 20 years of legal experience as a practicing Business, IP, and Technology Law litigation attorney.
